I wonder how and whether law can be written to cover such activity in a world of ubiquitous communications and data. That’s what I want to discuss.

(But first, let me stipulate a few points, your honors: First, I don’t know much about the law in this arena and that’s why I haven’t said much about these stories; I’m pointing this out now to save you the effort in the comments. Second, as in the prior Times story, the primary issue here is the adminstration’s refusal to get proper warrants and, yes, of course I believe the administration should follow the law. But third, this week’s On the Media (transcript not up yet) explains why the current law, FISA court, and warrants may not be adequate for the data age. Finally, fourth, I do believe that the government does need to spy on and find terrorists and until I see an enemies list led by Barbra Streisand, I won’t just assume that the current, former, or next government is doing this for the jollies; it’s possible, but I won’t assume it and neither will I too easily give up the tools needed to stop the next terrorist attack. While I’m at it, I’ll add that I am not a privacy freak and I am a hawk on terrorism. Enough caveats? Now back to the point….)

If I got it right, this week’s On the Media explained that current law is designed to hunt down known terrorists — to get a warrant to listen to them — rather than to comb through data to gether information — that is, to find terrorists. It stands to reason that analyzing communications data could unearth patterns and anomolies that could lead to suspicious activity.

The first problem with this is that you don’t know who the suspects are and what the suspicious data are until you look, until you have access to everything passing through some point. Next, you can’t find the anomalies until you establish the norm. Together, this means that our data become a necessarily ingredient in the analysis; we are the norm that defines the anomaly and our data passes through the same points with the suspects’. I think many of us could tolerate the idea that if the data we law-abiding, nonterrorists produce were only part of an aggregated pattern, this might be OK.

But, of course, our fear is that we will get caught in the net for other reasons. We fear that the government will decide to go after people who say “fuck” on the internet. We fear that the the state IRS will find out what we ordered online and make us pay local taxes. We fear that a divorce lawyer will be able to subpoena this data flow to get evidence of an illicit IM.

OK, so what if we say that data collected in such a manner can be used only for the limited purpose of finding and stopping terrorism and that it is out of bounds for any other purpose. But what if the anomaly that pops up in analysis turns up a kiddie porn ring or a vast insider-trading conspiracy or a mafia network? Should it still be off-limits? Would the fact that the government knew about it in one context prejudice any separate investigation and prosecution?

We, the crowd, create data through our activities that, in the aggregate, has value — value to categorize content, to target advertising, to establish norms. Who should mine and who should protect that value? And in the open world that enables so much else — the free control and creation of communications and content by the individual — opportunities to observe our behavior and tap that value are also created.

My point in all this is only to say that this is a new and complex area of technology, law, danger, and opportunity and requires new thinking from Congress and open deliberation — without, of course, compromising intelligence publicly — from the administration. My real fear is that our leaders don’t have the knowledge or vision to deal with this. But hiding from the challenge isn’t the answer, either.

Hillary Clinton has now come out against the International Freedom Center.

“I cannot support the IFC,” Clinton declared last night in a strongly worded statement in response to an inquiry from The Post….

“While I want to ensure that development and rebuilding in lower Manhattan move forward expeditiously, I am troubled by the serious concerns family members and first responders have expressed to me,” Clinton said.

The Post pats her on the back in an editorial (this could cinch her Blairesque endorsement from Murchoch):

It’s time for Pataki and Bloomberg to pull the plug. Now, even Hillary agrees.

But since late June the Freedom Center has been caught up in a vitriolic protest called the Take Back the Memorial movement, whose leaders claim for themselves the right of deciding for the rest of us what we should know and think about 9/11.

Quite the contrary, Times: We don’t want a center that will do precisely that. Let us all bring our own thoughts and questions to this place and not have them brought there for us.

And in its news columns, tomorrow’s Times writes a puffy piece about the IFC’s founder, Tom Bernstein (a few weeks after publishing a fair piece about the leader of the opposition, Debra Burlingame):

In fall 2001, not long after hundreds of makeshift hospital beds had been set up at Chelsea Piers to receive injured survivors from the World Trade Center – beds that were never used – Tom A. Bernstein, president of Chelsea Piers, envisioned reclaiming ground zero with the power of an idea.

The idea was freedom, embodied in an institution that would transmit its value to future generations. To build it, Mr. Bernstein said in 2004 he expected “years of intense labor, contentious debate and struggle.”

He is getting them….

Mr. Bernstein, who counts President Bush among his friends, has had to defend the center from those who say that it would be jingoistic by depicting an unblemished America as well as from those who complain that it would be un-American by dwelling on failures of social and foreign policy.

Well, yes, indeed, he has had to defend himself and for good reason.

In that piece, I see the first cogent description from Bernstein of his connection with the theme of freedom — a connection I questioned yesterday. Bernstein said:

Historically, if you look at the response to tyranny – in our view, terror being a modern variant – the only response, and the necessary response, and the crucial response is a reaffirmation of the values that are under assault. The central value here, and around the world, is freedom.

Fine. Who won’t salute the freedom flag? But this was not about an oppressed people breaking free. This was about criminals commiting murder. Bernstein tries to draw a parallel with the Holocaust Museum (moving past his attempts to draw parallels to the Gettysburg Museum). But that, too, doesn’t fit. The Holocaust Museum is, truly, about the crimes of the murderers. The IFC is not about the crimes of the islamofascists. That would at least be more relevant. But neither is appropriate at this place, at this time.

: The LMDC now has a form (not forum) to submit comment directly (with an odd heiarchy used to identify the commenter). I just cut-and-paste my post from yesterday. If this were a forum, we would be able to see what fellow citizens say about the IFC. But, not surprisingly, it’s only one-way, not transparent.

In any case, I urge you all to go to the site and leave your comments as well.

It was harder watching the memorial ceremony at the World Trade Center on TV than it has been being there. I’m not sure why: Perhaps it’s the separation, perhaps the closer view one gets through a TV lens.

I watched the beginning of the ceremony and then had to go to church. I returned and it was still going on. It took so much longer to read the names of the dead than it took to murder them.

I looked at my watch all day and retraced not my steps but my hours: when I arrived at the World Trade Center… when I witnessed the worst of it… when the fireball of the second jet roared… when the first tower fell… when I found my refuge… when I left that refuge… when the second tower fell… when I came to this landmark and that landmark on my walk uptown… when I arrived at Times Square and wrote my story….

This year, for the first time, I will not be at the World Trade Center on the morning of September 11th. And that will be hard.

This Sunday is also the first of the fall season in church. The kids come back to Sunday school. The choir starts. The family goes together. I know that’s where I belong.

But it hurts not to be at the World Trade Center then. Many, including my family, don’t understand why going there that morning matters to me. Worse, it reminds them that I came too close to leaving them that morning just because I thought I had some obligation to the news when, instead, I had an obligation to get out of harm’s way and return to them. I’m reminded of this choice again right now because of Katrina and all the people who made their choices in New Orleans.

In the last three years, I simply went to the site and listened as the names were read and retraced my steps that morning. I walk the steps between death and me and safety. I give thanks. I remember the heroes and innocents of the day.